A More Divisive, Political US Supreme Court? Think Again

A More Divisive, Political US Supreme Court? Think Again

Article excerpt

Public approval of the US Supreme Court is dropping. That trend
may be enforced by its decisions on the Arizona immigration law and
health-care reform. But the rate of dissent in the court today is no
greater than before. The problem lies with the divisive cases the
court selects.

In a week when the Supreme Court hands down potentially divisive
decisions on the health-care reform law known as Obamacare and the
Arizona immigration law (SB1070), it's time to set the record
straight about a court perceived as extraordinarily divisive and
political.

Twenty-five years ago, two-thirds of Americans approved of the
way the Supreme Court was doing its job. Today, according to a
recent New York Times-CBS News poll, that number is just 44 percent.
Pundits will be quick to react to the poll by declaring that public
dissatisfaction with the court is a consequence of the Supreme
Court's increasingly partisan and divisive behavior. The Times poll
suggests that a majority of the public accepts this explanation as
well; 3 out of 4 Americans believe Supreme Court justices are
sometimes influenced by their personal and political beliefs.

But are today's justices any more driven by politics than those
of the past?

Exhibit #1 in favor of that view, say the pundits, is the modern
trend toward the Supreme Court issuing split decisions, with the
justices in the minority writing scathing dissents in every case.
The problem with this bit of evidence is that no such trend exists.
In fact, the rate of disagreement among Supreme Court justices has
been remarkably stable for decades.

The percentage of votes cast as dissents in each judicial term
has remained the same during the post-war period - 18.24 percent
from 1946 to 2010, and 18.44 percent under today's Chief Justice
John Roberts.

Nor are dissents increasingly along partisan lines. In 1946,
every justice was appointed by a Democratic president. Yet the court
had the same rate of dissent that year as it has had under Chief
Justice Roberts. One also has to question 5-4 decisions as a
yardstick of contentiousness. For example, among four of the most
contentious cases in American history (Dredd Scott v. Sanford,
Korematsu v. United States, Miranda v. Arizona, and Roe v. Wade),
none were decided 5-4.

It is not ideology that's driving the dissent rate, but case
selection. Justices throughout history have sought to hear difficult
issues, the ones so tricky that they divide the courts of appeal. If
an opinion is destined to be affirmed 9-0, the justices are unlikely
to hear it.

What is more, litigants probably will not bring such an easy case
in the first place. …